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Thursday, April 18, 2013

Intellectual diversity and institutional pluralism

Over at Balkinization, Mark Tushnet has a few posts commenting and reflecting on a recent event at Harvard Law School, "Intellectual Diversity and the Legal Academy." He notes, in one place, that "what’s striking about the political spectrum in law schools is that it ranges from the center-left, with a handful of outliers to the left, to the rather conservative right." My own sense is that it would be more accurate to see any "rather conservative" law professors as being "outliers" in the same way that those whom Mark regards as truly "left" are, but I suppose there's no way around the fact that the labels used say as much about the labeler as they do about the labeled, and so I won't dwell on this point.

What really grabbed my attention, though, was Mark's observation in passing that "[i]t’s not at all clear to me that, given across-institution diversity, there’s a problem with the market in legal education. So, maybe the complaint isn't that there's not enough across-institution diversity." I think Mark's right to highlight the distinction between cross-institutional and intra-institutional diversity; it's one that is important to keep in mind in this and many other contexts. (So, for example, some of us think that "all comers" rules for recognized student groups mistakenly sacrifice diversity among groups for diversity within groups.) A few years ago, then-Dean John Garvey made this the theme of his tenure as Chair of the AALS, and I blogged about his "institutional pluralism" focus here and elsewhere (and here and here). We might worry, as we think about the "failing law schools" problem, that there's too much (AALS- and ABA-imposed?) sameness among law schools, and not just of the ideological kind.

I agree with Mark that the problem -- and, perhaps unlike him, I do think that it is a reality and a problem -- of a lack of ideological diversity within law schools' faculties and student bodies can be addressed, if not entirely alleviated, by more institutional diversity -- by a genuine market in student bodies and faculties. For such a market to really address the lack-of-intellectual-diversity problem of, though, it seems that there would need to be meaningful institutional diversity (along ideological as well as other lines) among the very top law schools and while I think there is some, there's probably not enough for the kind of market Mark is thinking about.

I'd note, finally, that - thinking about the fact that the "conservative" schools Mark identified are all schools with a religious character or affiliation -- I think we need to be careful about equating a school's distinctive religious character with a "conservative" ideological character. A Catholic law school, for example, might have more than the typical number of students and faculty who support closer regulation of abortion, but that same school might also have more than the typical number of students and faculty who are skeptical of certain forms of libertarianism or who support an arguably inefficiently (by some measures) generous level of social-welfare programming.

Comments

On Rick's last point, I think I wrote that the three faculties had strong conservative public law faculties, not that the schools "were" in some general sense conservative, although maybe at some point I did use the summary label. In my remarks at the Federalist Society conference I mentioned the possible "social justice" orientation of some Catholic institutions. (Also, it's not really a quibble to point out that Pepperdine isn't a Catholic institution!) I may be posting some additional thoughts on across-institution diversity over the next few days.

Posted by: Mark Tushnet | Apr 18, 2013 1:25:24 PM

I wonder what is the diversity of membership in The Federalist Society itself. But for Brown v. Bd. of Educ., would there be a Federalist Society?

Posted by: Shag from Brookline | Apr 19, 2013 8:12:26 AM

Can we call it partisan, political, or ideological diversity? Intellectual diversity doesn't seem like a very good term for a quantity of interest that is conventionally measured by party affiliation.